SETTLEMENT AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA,
HARRISON COUNTY, MISSISSIPPI
UNDER THE AMERICANS WITH DISABILITIES ACT
In 2005, Hurricanes Katrina and Rita produced wide-spread flooding in Harrison County, Mississippi (County). As a result, many facilities in the County were damaged or destroyed, and extensive construction and rehabilitation of buildings and facilities are expected throughout the County over the next several years.
The United States Department of Justice (Department) initiated this matter to provide technical assistance to the County in complying with its obligations under title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12131-12134, and the Department's implementing regulation, 28 C.F.R. Part 35, with respect to (1) the construction of new facilities to replace those that were destroyed or damaged, (2) the rehabilitation of facilities that were damaged, (3) the re-introduction of programs, services, and activities to buildings and facilities closed because of damage, and (4) the development of an emergency operations plan that addresses the needs of people with disabilities. The Department initiated this matter in the spirit of federal/local government cooperation and not as a result of a complaint alleging violation of title II by the County.
- The ADA applies to the County because it is a "public entity" as defined by title II. 42 U.S.C. § 12131(1)(A).
- The Department is authorized to provide technical assistance to the County pursuant to section 506 of the ADA, 42 U.S.C. § 12206. The Department is also authorized under 28 C.F.R. Part 35, Subpart F, to determine the compliance of the County with title II of the ADA and the Department's title II implementing regulation, to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements. The Attorney General is further authorized, under 42 U.S.C. § 12133, to bring a civil actionenforcing title II of the ADA should the Department fail to secure voluntary compliance pursuant to Subpart F.
- The parties to this Agreement are the United States of America and Harrison County, Mississippi.
- The parties enter into this Agreement in order to facilitate the County's compliance with the requirements of title II of the ADA with respect to its emergency operations plan and its efforts to address hurricane-related damage to its buildings and facilities, and to avoid the burdens and expenses of an investigation and possible litigation.
- In consideration of, and consistent with, the terms of this Agreement, the Attorney General agrees to provide the technical assistance set forth in this Agreement. The Attorney General also agrees to refrain from filing a civil suit in this matter regarding all matters contained within this Agreement, except as provided in the section entitled "Implementation and Enforcement."
- In consideration of the technical assistance provided by the United States pursuant to this Agreement, the County agrees to comply with the terms of this Agreement.
C. ENSURING ACCESS TO FACILITIES, PROGRAMS, SERVICES, AND ACTIVITIES
- Construction and Rehabilitation of Buildings and Facilities: The County will ensure
that all of its facilities will be constructed or rehabilitated in full compliance with the
requirements of the ADA as set forth below.
- For all County buildings and facilities constructed following the effective date of this Agreement (i.e., "new construction" pursuant to 28 C.F.R. § 35.151(a)), the County will comply with the requirements of the Department's ADA regulation, 28 C.F.R. Part 35, and the ADA Standards for Accessible Design, 28 C.F.R. Part 36, App. A ("Standards"), including the scoping provisions in effect at the time of construction.
- In its rehabilitation of all County buildings and facilities for which original construction commenced after January 26, 1992 (i.e., "new construction" pursuant to 28 C.F.R. § 35.151(a)), the County will comply with the requirements of the Department's ADA regulation, 28 C.F.R. Part 35, and the Standards in effect at the time of rehabilitation.
- In its rehabilitation of all County facilities for which original construction commenced on or before January 26, 1992 (i.e., "alterations" to "existing facilities" pursuant to 28 C.F.R. § 35.151(b) and (c)), the County will ensure that all elements are in compliance with the Standards in effect at that time, including the "path of travel" requirements if alterations are made to primary function areas.
- Program Access: As it re-introduces its programs, services, and activities into its
facilities closed due to hurricane-related damage, the County will ensure compliance with
- With respect to facilities for which original construction commenced after January 26, 1992 (i.e., "new construction"), the County will ensure that such facilities become and/or remain readily accessible to and usable by people with disabilities in compliance with the Standards. 28 C.F.R. § 35.151(a). Prior to reopening each such facility, the County will identify and remove barriers to access for persons with disabilities by applying the Standards, including the Standards' scoping requirements, to determine whether the facility is "readily accessible to and usable by" persons with disabilities. 28 C.F.R. §§ 35.149, 35.151(a).
- With respect to facilities for which original construction commenced on or before January 26, 1992 (i.e., "existing facilities"), the County will ensure that, when viewed in its entirety, each such program, service, or activity becomes and/or remains readily accessible to and usable by individuals with disabilities, 28 C.F.R. § 35.150. Prior to re-opening each such facility, the County will identify barriers to access for persons with disabilities by applying the Standards, including the Standards' scoping requirements, to determine whether the facility is "readily accessible to and usable by" persons with disabilities. Once barriers have been identified, the County will take whatever actions are needed to ensure that persons with disabilities have access to the programs, services, and activities that would otherwise be provided at that facility. Such actions may include removing the architectural barriers, reassigning services to more accessible facilities, conducting home visits, or implementing any other method that results in making the program, service, or activity readily accessible to and usable by persons with disabilities. 28 C.F.R. § 35.150. This paragraph does not require the County to take any action that it can demonstrate would result in a fundamental alteration or undue burden. 28 C.F.R. § 35.150(a)(3).
- Maintenance of Accessible Features: Throughout the life of this Agreement, consistent with 28 C.F.R. § 35.133(a), the County will maintain the accessibility of its programs, activities, services, facilities, and equipment, and will take whatever actions are necessary (such as routine testing of accessibility equipment and routine accessibility audits of its programs and facilities) to do so. This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 C.F.R. § 35.133(b).
D. TECHNICAL ASSISTANCE AND CONSULTATION
- Funding of Technical Assistance and Other Services Provided by Consultant: Both parties acknowledge that the initiatives contained in paragraphs 11 - 13 of this Agreement will be performed by a Department of Justice consultant.
- Design Reviews of Plans for New Construction and Modifications to Facilities: The
parties agree as follows:
- To assist the County with ensuring ADA compliance during its rebuilding and rehabilitation of facilities, the Department will provide an architectural consultant to review design plans for certain facilities that are being constructed or rehabilitated. The plans selected for review by the consultant will be agreed upon jointly by the County and the United States, with priority being given to those plans for facilities which members of the public will use most frequently to obtain access to the Counties' programs, activities, and services. The reviews will focus on critical accessibility features such as parking, routes to the facility, entrances, routes inside the facility, and toilet rooms, as well as the accessibility of special features such as courtrooms, assembly areas, and holding cells.
- To assist the parties in selecting the plans most appropriate for review by the consultant, the County will advise the Department in writing within 30 days after it develops and/or receives design plans for the construction or rehabilitation of any building or facility.
- The County will submit the plans selected for review to the consultant provided by the Department at least 90 days prior to the commencement of construction or rehabilitation of a facility.
- The consultant's contract with the Department will require the consultant to provide comments simultaneously to the County and to the Department within 30 days of receipt of the design plans.
- The County will re-design and construct its facilities consistent with the consultant's and the Department's ADA findings and recommendations.
- Training on ADA Architectural Requirements for Key County Personnel and for Local Architects, Engineers, and Contractors: To further assist the County during the rebuilding effort, the Department will provide live ADA training and consultation for County building inspectors, facilities personnel, and County employees involved in the rebuilding and rehabilitation process. The training and consultation will be provided by an ADA architectural consultant hired by the Department and/or by a staff architect employed by the Department. Training sessions will be open to architects, engineers, and contractors who may engage in the design or construction of public or private buildings or facilities in the County. The Department will determine the amount of training and consultation provided based upon available funding.
- "Ask the ADA Architect" Desk: The Department will provide live ADA consultation for private business owners, landlords, contractors, architects, and others who are designing or rebuilding private (non-governmental) facilities within the County. The County will provide adequate office space, equipment, and support for this initiative, and will conduct all necessary outreach to the targeted communities. This consultation will be conducted by an architectural consultant hired by the Department and/or by a staff architect employed by the Department. The Department will determine the amount of consultation provided based upon available funding.
E. EMERGENCY MANAGEMENT PROCEDURES AND POLICIES
- Within 15 days of the effective date of this Agreement, the County will provide the Department with the County's Emergency Operations Plan ("EOP"), including all supporting documents.
- Within 60 days of receipt of the County's EOP, the Department will provide comments to the County on the modifications required to ensure compliance with title II of the ADA and the Department's implementing regulation.
- Within 60 days of receipt of the Department's comments on the County's EOP, the County will incorporate the Department's comments into its EOP, ensure that its revised EOP is in full compliance with the requirements of title II of the ADA, and provide a copy of its revised EOP (including supporting documents) to the Department.
- The County will implement the EOP and supporting documents consistent with comments received from the Department relating to compliance with title II of the ADA and its implementing regulation.
F. IMPLEMENTATION AND ENFORCEMENT
- Except as otherwise specified in this Agreement, at yearly anniversaries of the effective date of this Agreement until it expires, the County will submit written reports to the Department summarizing the actions the County has taken pursuant to this Agreement. Reports will include detailed photographs showing measurements, architectural plans, work orders, notices published in the newspaper, copies of adopted policies, and proof of efforts to secure funding/assistance for structural renovations or equipment.
- If at any time the County desires to modify any portion of this Agreement because of changed conditions making performance impossible or impractical or for any other reason, it will promptly notify the Department in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification. Until there is written agreement by the Department to the proposed modification, the proposed modification will not take effect. These actions must receive the prior written approval of the Department, which approval will not be unreasonably withheld or delayed.
- The Department may review compliance with this Agreement at any time. If the Department believes that the County has failed to comply in a timely manner with any requirement of this Agreement without obtaining sufficient advance written agreement with the Department for a modification of the relevant terms, the Department will so notify the County in writing and it will attempt to resolve the issue or issues in good faith. If the Department is unable to reach a satisfactory resolution of the issue or issues raised within 30 days of the date it provides notice to the County, it may institute a civil action in federal district court to enforce the terms of this Agreement, or it may initiate appropriate steps to enforce title II.
- For purposes of the immediately preceding paragraph, it is a violation of this Agreement for the County to fail to comply in a timely manner with any of its requirements without obtaining sufficient advance written agreement with the Department for an extension of the relevant time frame imposed by the Agreement.
- Failure by the Department to enforce this entire Agreement or any provision thereof with regard to any deadline or any other provision herein will not be construed as a waiver of the Department's right to enforce other deadlines and provisions of this Agreement.
- A copy of this document or any information contained in it will be made available to any person by the County or the Department on request.
- This Agreement constitutes the entire agreement between the parties on the matters raised herein, and no other statement, promise, or agreement, either written or oral, made by either party or agents of either party, that is not contained in this written Agreement, will be enforceable. This Agreement does not purport to remedy any other potential violations of the ADA or any other federal law. This Agreement does not affect the County's continuing responsibility to comply with all aspects of the ADA.
- This Agreement will remain in effect for four years from the effective date of this agreement.
- The person signing for the County represents that he or she is authorized to bind the County to this Agreement.
- The effective date of this Agreement is the date of the last signature below.
For Harrison County, Mississippi: For the United States:
WAN J. KIM
Assistant Attorney General for Civil Rights
LARRY BENEFIELD, President
Harrison County Board of
1801 23rd Avenue
Gulfport, MS 39501
JOHN MCADAMS, Board Clerk
JOHN L. WODATCH, Chief
JEANINE WORDEN, Deputy Chief
NAOMI MILTON, Supervisory Attorney
SUSAN BUCKINGHAM REILLY, Attorney
DOV LUTZKER, Attorney
AMELIA EDUARDO, Investigator
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYA
Washington, DC 20530
January 14, 2008